DON THE EX­PERT HAT

Na­tional Green Tri­bunal dis­ap­proves ap­point­ment of peo­ple with­out rel­e­vant ex­pe­ri­ence to ex­pert ap­praisal com­mit­tees, asks en­vi­ron­ment min­istry to re­vise its se­lec­tion cri­te­ria

Down to Earth - - CONTENTS - SRESTHA BAN­ER­JEE

Get peo­ple with right ex­pe­ri­ence in ex­pert ap­praisal com­mit­tees, Na­tional

Green Tri­bunal tells gov­ern­ment

THE NA­TIONAL GreenTri­bunal has said that the Min­istry of En­vi­ron­ment,Forests and Cli­mate Change should ap­point only those peo­ple as chair­per­sons and mem­bers of ex­pert ap­praisal com­mit­tees who have “ex­per­tise and ex­pe­ri­ence” in en­vi­ron­men­tre­lated is­sues. In a judge­ment de­liv­ered on July 17, the court also said that the ex­per­tise of chair­per­sons should be in the area with which the com­mit­tee is con­cerned.

Ex­pert ap­praisal com­mit­tees (eac) ex­ist at the Union as well as state lev­els (state ex­pert ap­praisal com­mit­tee or seac) to ad­vise the gov­ern­ment on en­vi­ron­men­tal clear­ance of devel­op­ment pro­jects. The di­rec­tions is­sued by the Jus­tice Swan­tan­ter Ku­mar­headed prin­ci­pal Bench of the Na­tional Green Tri­bunal (ngt) are ap­pli­ca­ble to com­mit­tees at both the lev­els.

The role of eac is in­te­gral to the process of grant­ing en­vi­ron­men­tal clear­ance to devel­op­ment pro­jects. Ac­cord­ing to the En­vi­ron­ment Im­pact As­sess­ment (eia) No­ti­fi­ca­tion, 2006, eval­u­a­tion of pro­pos­als in­volves four steps: screen­ing,scop­ing,public hear­ing and ap­praisal.eac/seac are in­volved in var­i­ous ca­pac­i­ties in all the stages, ex­cept for public hear­ing. The se­lec­tion cri­te­ria for eac chair­per­sons are also given in the no­ti­fi­ca­tion. “The [ngt] di­rec­tions fol­low a close read­ing of the eia No­ti­fi­ca­tion, 2006, where the cri­te­ria for choos­ing the eac chair­per­son spec­ify that he/she should be some­one with ex­per­tise in public ad­min­is­tra­tion/man­age­ment,” says Neeraj Vago­likar of non-profit Kal­pavriksh, a pe­ti­tioner in the case. The court ob­served that the se­lec­tion cri­te­ria are not ap­pro­pri­ately out­lined and has asked the Union Min­istry of En­vi­ron­ment,Forests and Cli­mate Change (moe­fcc) to re­vise it. Till the re­vi­sion is done,no new ap­point­ment can be made,says the or­der .

The ngt or­der came in re­sponse to a pe­ti­tion orig­i­nally filed be­fore the Delhi High Court in 2011. Apart from Kal­pavriksh, Goa Foun­da­tion and Manoj Mishra,re­tired chief con­ser­va­tor of forests of Ch­hat­tis­garh, are also party to the pe­ti­tion. The case was trans­ferred from the High Court to ngt in April 2013.

The pe­ti­tion held that the pri­mary ob­jec­tive of moe­fcc is to pro­tect the en­vi­ron­ment and eacs,be­ing the key bod­ies ad­vis­ing the min­istry on en­vi­ron­men­tal clear­ances, have a vi­tal role. But th­ese com­mit­tees have given sev­eral con­tro­ver­sial de­ci­sions be­cause the chair­per­sons lacked req­ui­site ex­per­tise, states the pe­ti­tion.

The rea­son be­hind this is the change in the se­lec­tion cri­te­ria of eac chair­per­sons. Since the first draft eia no­ti­fi­ca­tion of 1992 where the em­pha­sis was on ex­per­tise, the fo­cus has shifted to man­age­rial abil­ity (see ‘Chang­ing cri­te­ria’ on p19). How­ever, moe­fcc says the cri­te­ria, as spec­i­fied in the eia No­ti­fi­ca­tion of 2006,have been mod­i­fied through a min­istry no­ti­fi­ca­tion is­sued in Oc­to­ber 2007.But it is worth not­ing that the mod­i­fied pro­vi­sion still re­tains the clause “public ad­min­is­tra­tion or man­age­ment” ex­pert for se­lect­ing eac mem­bers. The moe­fcc cur­rently has seven eacs for dif­fer­ent sec­tors. Of the six eac chair­per­sons (coal and ther­mal power have the same head), four are from the In­dian Ad­min­is­tra­tive Ser­vice.

It is dif­fi­cult to as­cer­tain how the ex­pe­ri­ence they have helps them com­pre­hen­sively eval­u­ate the en­vi­ron­men­tal and so­cial im­pacts of a pro­posed project.

“A S Lamba, who holds the cru­cial chair po­si­tion of two ma­jor sec­tors—coal min­ing and ther­mal power—has barely been af­fil­i­ated with an en­vi­ron­ment- and fore­stre­lated po­si­tion,”says en­vi­ron­men­tal lawyer Ritwik Dutta. Lamba’s last post­ing was as sec­re­tary, Min­istry of Devel­op­ment of North East­ern Re­gion. Prior to that, he was a spe­cial sec­re­tary in the Min­istry of Agri­cul­ture. He has also held var­i­ous ad­min­is­tra­tive po­si­tions in the Min­istry of Sur­face Trans­porta­tion (see ‘Cur­rent chair­per­sons’).

Sim­i­lar is the case of Alok Perti, chair­per­son of eac on river val­ley and hy­dro sec­tor. “Perti was in­volved with the coal min­istry between 2009 to 2013, hold­ing var­i­ous ad­min­is­tra­tive po­si­tions, and in min­istries like de­fence and fam­ily wel­fare be­fore that,” says Hi­man­shu Thakkar of South Asia Net­work on Dams, Rivers and Peo­ple.His cur­rent af­fil­i­a­tion with the board of Coal In­dia Limited also raises ques­tions of con­flict of in­ter­est.

How­ever, con­flict of in­ter­est in eac ap­point­ments is not new. The Delhi High Court made some sig­nif­i­cant ob­ser­va­tions in 2009 while hear­ing a case re­lated to en­vi­ron­men­tal clear­ance of Goa’s Borga iron ore mine. Af­ter it emerged that M L Ma­jum­dar,the then chair­per­son of eac on mines, was the direc­tor of four min­ing com­pa­nies,the court noted that “ap­point­ing a per­son who has a di­rect in­ter­est in the pro­mo­tion of the min­ing in­dus­try as chair­per­son of the eac (Mines) is an un­healthy prac­tice,as that will rob the eac of its cred­i­bil­ity since there is an ob­vi­ous and di­rect con­flict of in­ter­est.”

The sit­u­a­tion is a lit­tle bet­ter as far as ap­point­ment of mem­bers to eacs is con­cerned.An anal­y­sis of the back­ground of eac on coal and ther­mal power shows that the com­mit­tee in­cludes peo­ple who have been in­volved in th­ese ar­eas. One of the mem­bers, A K Bansal, has been the ad­di­tional direc­tor gen­eral of forests in the Union min­istry. An­other, N K Verma, has been the ad­di­tional direc­tor of the Cen­tral Pol­lu­tion Con­trol Board Sim­i­larly, CR Babu has served on the fac­ulty of the School of En­vi­ron­men­tal Stud­ies at the Delhi Univer­sity.

Though the pe­ti­tion­ers agree that the sit­u­a­tion is bet­ter as far as ap­point­ment of eac mem­bers is con­cerned, they say it “still re­mains prob­lem­atic given the cen­tral role of the chair­per­son, par­tic­u­larly with them be­ing ex-bu­reau­crats in com­mand­ing power”.

Need to change

Con­sid­er­ing the huge devel­op­ment push un­der­pin­ning the cur­rent Union gov­ern­ment’s agenda, a re­vi­sion in the cri­te­ria for ap­point­ing eac chair­per­sons is cer­tainly needed. Ap­point­ment of eac chair­per­sons based on their man­age­rial mer­its is also prob­lem­atic be­cause such an ap­proach fo­cuses on meet­ing devel­op­ment goals and en­vi­ron­men­tal fall­out re­mains a sec­ondary con­sid­er­a­tion.

ngt’s ob­ser­va­tion is sig­nif­i­cant in this re­gard: “If peo­ple who are not strictly qual­i­fied and el­i­gi­ble in the field of en­vi­ron­ment are se­lected as mem­bers of eac/ seac, the ob­vi­ous re­sult would be im­proper ap­pli­ca­tion of mind.” The or­der adds that this “would lead to im­proper con­sid­er­a­tion and dis­posal of ap­pli­ca­tion for clear­ance filed by the project pro­po­nent”.

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